State v. Clifton Wallen ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER 1998 SESSION
March 17, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, * C.C.A. No. 03C01-9710-CC-00461
Appellee, * HAWKINS COUNTY
VS. * Honorable James E. Beckner, Judge
CLIFTON D. WALLEN, * (Violation of Motor Vehicle Habitual
Offender Act; felony evading arrest)
Appellant. *
For Appellant: For Appellee:
R. Russell Mattocks John Knox Walkup
Office of the Public Defender Attorney General and Reporter
Third Judicial District
1609 College Park Drive, Box 11 Clinton J. Morgan
Morristown, TN 37813-1618 Counsel for the State
(on appeal & elbow counsel at trial) 425 Fifth Avenue, North
Cordell Hull Building, Second Floor
Clifton D. Wallen, pro se Nashville, TN 37243-0493
P.O. Box 549
Whiteville, TN 38075 Michelle Green
(at trial) and
Doug Godbee
Assistant District Attorneys General
Hawkins County Courthouse
Rogersville, TN 37857
OPINION FILED:__________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Clifton D. Wallen, who was convicted of violating an
order declaring him a motor vehicle habitual offender, was also convicted of evading
arrest while operating a motor vehicle. Both offenses are Class E felonies. Tenn.
Code Ann. §§ 55-10-616, 39-16-603(b)(1). The trial court imposed consecutive,
Range I sentences of two years for each offense. The defendant was fined
$750.00.
In this appeal of right, the defendant presents the following issues for
review:
(I) whether the evidence is sufficient to support the
convictions;
(II) whether the trial court erred by misapplying
enhancement factors, by failing to apply mitigating
factors, and by denying an alternative sentence;
(III) whether he was improperly deprived of appointed
counsel at the preliminary hearing;
(IV) whether the trial court improperly restricted cross-
examination of police officers during trial;
(V) whether the defendant was incompetent to represent
himself;
(VI) whether the defendant was prejudiced because the
trial court allowed only nineteen days to prepare for trial;
and
(VII) whether the district attorney hindered the
defendant's ability to represent himself by refusing to
provide information about jury selection and subpoenas.
We affirm the judgment of the trial court.
On January 28, 1997, Randy Collier of the Mount Carmel Police
Department observed the defendant driving a Ford Mustang in a parking lot. Officer
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Collier, who knew the defendant and suspected he had no driver's license, watched
as the defendant parked his vehicle and entered a drugstore. Within minutes, the
defendant left the drugstore, glanced at Officer Collier, and then entered an
adjoining grocery store. Meanwhile, Officer Collier had called dispatch and verified
that the defendant's license had been revoked. He also learned that the defendant
was classified a motor vehicle habitual offender. Approximately thirty to forty-five
minutes later, the defendant walked out of the grocery store, again glanced at the
officer, and then drove down Main Street. Officer Collier followed in his cruiser for a
short distance before activating the blue lights. When the defendant accelerated,
Officer Collier turned on his siren and chased the defendant at speeds of 30 m.p.h.
over the 20 m.p.h. speed limit. Several minutes later, the defendant stopped at his
residence. Officer Collier informed him of his arrest for driving without a license. At
that point, the defendant tossed his car keys into the bushes nearby and said, "I
[was not] driving." Officer Collier then handcuffed the defendant and transported
him to the Hawkins County Sheriff's Department. The defendant was belligerent
and informed the officer that the only reason he had driven was to get some
medication for his mother.
At trial, Officer Collier denied that he was stalking the defendant and
testified that the basis for the stop was that the defendant was driving on a revoked
license and was a motor vehicle habitual offender. Officer Travis Chapel of the
Mount Carmel Police Department was with Officer Collier on the date of the
offenses. He corroborated the testimony of Officer Collier. Holly Jaynes, the
Hawkins County Circuit Court Clerk, presented the original order, entered March 1,
1996, declaring the defendant a motor vehicle habitual offender and barring him
from driving for at least three years.
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The defendant testified in his defense. He claimed that it was dark on
the evening in question and that the officers were stalking him.
I
Initially, the defendant challenges the sufficiency of the evidence as to
each conviction. On appeal, of course, the state is entitled to the strongest
legitimate view of the evidence and all reasonable inferences which might be drawn
therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of
the witnesses, the weight to be given their testimony, and the reconciliation of
conflicts in the proof are matters entrusted to the jury as trier of fact. Byrge v. State,
575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the
evidence is challenged, the relevant question is whether, after reviewing the
evidence in the light most favorable to the state, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).
The applicable statute provides as follows:
(a) It is unlawful for any person to operate any
motor vehicle in this state while the judgment or order of
the court prohibiting the operation remains in effect.
(b) Any person found to be an habitual offender
under the provisions of this part who thereafter is
convicted of operating a motor vehicle in this state while
the judgment or order of the court prohibiting such
operation is in effect commits a Class E felony.
Tenn. Code Ann. § 55-10-616. At trial, the state introduced a certified copy of the
order declaring the defendant a motor vehicle habitual offender. Officer Collier and
Officer Chapel testified that they had witnessed the defendant driving a Ford
Mustang on January 28, 1997, less than one year after entry of the order barring
him from driving a motor vehicle. See Tenn. Code Ann. § 55-10-615(a). In our
view, the evidence is clearly sufficient to support his conviction for violating the
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motor vehicle habitual offender order.
Next, the defendant argues that the evidence is insufficient to support
his conviction for evading arrest by use of an automobile. "It is unlawful for any
person, while operating a motor vehicle on any street, road, alley or highway in this
state, to intentionally flee or attempt to elude any law enforcement officer, after
having received any signal from such officer to bring the vehicle to a stop." Tenn.
Code Ann. § 39-16-603(b)(1). A person acts intentionally, "when it is the person's
conscious objective or desire to engage in the conduct or cause the result." Tenn.
Code Ann. § 39-11-302(a). Here, Officer Collier activated his blue lights and siren
and chased for several minutes a vehicle operated by the defendant through the
streets of Mount Carmel. There was proof that the defendant accelerated rather
than yielding to blue lights. In our view, it was reasonable for the jury to conclude
that the defendant, who was driving in violation of a court order, was intentionally
attempting to elude Officer Collier. Thus, the evidence is sufficient.
II
Next, the defendant complains that the trial court erred by misapplying
enhancement factors, failing to apply mitigating factors, and refusing to grant an
alternative sentence.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see
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State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission
Comments provide that the burden is on the defendant to show the impropriety of
the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and
-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
At the time of this offense, the presumptive sentence was the
minimum in the range if there were no enhancement and mitigating factors. Tenn.
Code Ann. § 40-35-210. Should the trial court find mitigating and enhancement
factors, it must start at the minimum sentence in the range and enhance the
sentence based upon any applicable enhancement factors, and then reduce the
sentence based upon any appropriate mitigating factors. Tenn. Code Ann. § 40-35-
210(e). The weight given to each factor is within the trial court's discretion provided
that the record supports its findings and it complies with the Criminal Sentencing
Reform Act of 1989. See Ashby, 823 S.W.2d at 169. The trial court should,
however, make specific findings on the record which indicate its application of the
sentencing principles. Tenn. Code Ann. §§ 40-35-209, -210.
The fifty-one-year-old defendant obtained his GED while serving in the
army. He reported a history of alcohol abuse and illness, including hepatitis B, for
which he had been prescribed medication. He reported that he suffers from an
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anxiety and panic disorder and that he is disabled and unemployed.
At the sentencing hearing, the state introduced certified copies of
judgments showing a number of prior convictions and arrests. In 1997, the
defendant was charged but later acquitted of DUI; he was, however, convicted of a
violation of the implied consent law. In 1995, he was convicted of two counts of
felony reckless endangerment and felony possession of a prohibited weapon. In
1994, he was twice convicted of driving on a revoked license. In 1993, a jury
convicted the defendant of public intoxication, two counts of disorderly conduct, and
simple possession of marijuana. That same year the defendant was also convicted
of public intoxication and a reduced charge of simple possession of marijuana. In
1992, the defendant was convicted of driving without a license, DUI, and violation of
the implied consent law. He also pleaded nolo contendere to another instance of
driving without a license. In 1989, he was convicted of public intoxication and
driving without a license and in 1985, he was convicted of attempted aggravated
assault. In 1982, the defendant was convicted of public drunkenness and in 1980,
he was convicted of disorderly conduct and fined for violating his probation. In
1978, the defendant was convicted of possession of marijuana for resale and, in
1977, possession of an open beer. In 1976, he was convicted of disorderly conduct.
The defendant was convicted of public drunkenness in 1976 and in 1969, the
defendant was convicted of driving without a license and possession of whiskey.
After determining that the sentence for each offense ranged from one
to two years, the trial court applied two enhancement factors on each offense:
(1) that the defendant has a previous history of criminal
convictions or criminal behavior; and
(2) that the defendant has a history of unwillingness to
comply with conditions of a sentence involving release to
the community.
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Tenn. Code Ann. § 40-35-114(1), (8). The trial court determined that each
enhancement factor was "extremely weighty." No mitigating factors were identified.
The maximum sentence of two years was imposed on each conviction.
In our view, the imposition of the maximum sentences was warranted.
Because the defendant has failed to demonstrate that the trial court imposed an
improper sentence, the record fully supports the conclusion of the trial court. Both
the length and the nature of the consecutive sentences were entirely appropriate.
Especially mitigated or standard offenders convicted of Class C, D, or
E felonies are, of course, presumed to be favorable candidates "for alternative
sentencing options in the absence of evidence to the contrary." Tenn. Code Ann. §
40-35-102(6). With certain statutory exceptions, none of which apply here,
probation must be automatically considered by the trial court if the sentence
imposed is eight years or less. Tenn. Code Ann. § 40-35-303(b). Among the
factors applicable to probation consideration are the circumstances of the offense,
the defendant's criminal record, social history and present condition, and the
deterrent effect upon and best interest of the defendant and the public. State v.
Grear, 568 S.W.2d 285 (Tenn. 1978).
In denying probation, the trial court concluded that confinement was
required to protect society from the defendant who has a long history of criminal
conduct, to avoid depreciating the seriousness of the offense, and to serve as a
deterrent to others. Moreover, confinement was necessary because, in the past,
less restrictive measures had been unsuccessfully applied to the defendant. Finally,
the trial court concluded that the defendant's potential for rehabilitation was poor
and, in considering the principles of sentencing, determined that probation should
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be denied. In our assessment, the trial court was warranted in denying probation.
Because the defendant has a history of criminal convictions and probation
violations, he is a poor candidate for a sentence involving release to the community.
The purpose of the Community Corrections Act of 1985 was to provide
an alternative means of punishment for "selected, nonviolent felony offenders in
front-end community based alternatives to incarceration." Tenn. Code Ann. §
40-36-103. The community corrections sentence provides a desired degree of
flexibility that may be both beneficial to the defendant yet serve legitimate societal
aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). Even in cases where the
defendant meets the minimum requirements of the Community Corrections Act of
1985, the defendant is not necessarily entitled to be sentenced under the Act as a
matter of law or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987).
The following offenders are eligible for community corrections:
(1) Persons who, without this option, would be
incarcerated in a correctional institution;
(2) Persons who are convicted of property-related, or
drug/alcohol-related felony offenses or other felony
offenses not involving crimes against the person as
provided in title 39, chapter 2 [repealed], parts 1-3 and
5-7 or title 39, chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent felony
offenses;
(4) Persons who are convicted of felony offenses in
which the use or possession of a weapon was not
involved;
(5) Persons who do not demonstrate a present or past
pattern of behavior indicating violence;
(6) Persons who do not demonstrate a pattern of
committing violent offenses; and
(7) Persons who are sentenced to incarceration or on
escape at the time of consideration will not be eligible.
Tenn. Code Ann. § 40-36-106(a).
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The defendant is eligible for community corrections. In Ashby,
however, our supreme court encouraged the grant of considerable discretionary
authority to our trial courts in matters such as these. 823 S.W.2d at 171. See State
v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986). In the words of the late Judge Joe B.
Jones, "each case must be bottomed upon its own facts." Taylor, 744 S.W.2d at
922. "It is not the policy or purpose of this court to place trial judges in a judicial
straight-jacket in this or any other area, and we are always reluctant to interfere with
their traditional discretionary powers." Ashby, 823 S.W.2d at 171. Here, the trial
court considered and rejected community corrections, citing the need for
incarceration to restrain the defendant, protect the public, and avoid depreciating the
seriousness of the offense. That the defendant had an extensive prior criminal
record and prior probation violations was also considered. As the trial court
observed, "there's an inability at this point to achieve any rehabilitation."
Incarceration was warranted.
III
The defendant also contends that he was improperly deprived of
appointed counsel at the preliminary hearing. The appellant's brief contains no
citation to legal authority nor references to the record. In such circumstances, the
issues may be treated as waived. Rule 10, Tenn. Ct. Crim. App. Moreover, the
record contains insufficient evidence to support the defendant's contention. There is
no transcript of the proceedings from general sessions court and, while included in
the record, the affidavit of complaint is not signed by the defendant. The warrant
does indicate that the matter was bound over to the grand jury. This is an
insufficient record for an in-depth analysis of the issue. The appellant has the duty
to prepare a record that conveys a fair, accurate, and complete account of what
transpired in the trial court with respect to the issues that form the basis for the
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appeal. Tenn. R. App. P. 24(b). State v. Cooper, 736 S.W.2d 125 (Tenn. Crim.
App. 1987). The issue has been waived.
IV
Next, the defendant argues that the trial court improperly restricted
cross-examination of police officers. At trial, the following exchange occurred:
Defendant: Okay, after the arrest, did I not request that
you get my heart medication from my
mother's house?
State: Object to the relevancy of this, your Honor.
The Court: Sustained. That's not a proper question.
***
Defendant: Well, I'm asking the question again. Did I
not ask you to find my medication?
State: Objection, your Honor.
The Court: I sustained that objection.
***
Witness: So I had you loaded in the back of my car
within eight minutes from the time the
whole thing started.
Defendant: Well, I just didn't want the jury to get the
wrong idea that maybe this had lasted
longer.
State: Objection to testifying.
The Court: Remember questions, questions.
Defendant: Well, evidently the Court is not going to let
me ask any questions of anything of that
nature. No more questions.
While the right of cross-examination is fundamental, its exercise is controlled by the
discretionary authority of the trial judge. Davis v. State, 212 S.W.2d 374 (Tenn.
1948); Hobbs v. State, 460 S.W.2d 377 (Tenn. Crim. App. 1970). Only a plain
abuse of that authority constitutes grounds for reversal. State v. Fowler, 373
S.W.2d 460 (Tenn. 1963); State v. Black, 618 S.W.2d 526, 528 (Tenn. Crim. App.
1981). The defendant did not explain the relevance of the question regarding his
medication nor has he cited legal authority to support his claim. Rule 10, Tenn. Ct.
Crim. App. The defendant has failed to demonstrate an abuse of discretion on the
part of the trial court. In consequence, this issue has no merit.
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V
The defendant also complains that he was incompetent to represent
himself at trial because he suffers from a "50% brain condition that requires strong
medication." During the sentencing hearing, the defendant concluded in retrospect
that he had been incompetent to represent himself at trial because of his
prescription medication. The trial court observed as follows:
[The defendant] says he was drunk during the course of
the trial. ... The defendant did ask that Mr. Mattocks not
represent him although he could assist as elbow counsel,
and he asked that he represent himself. I asked the
defendant a lot of questions to determine his
competence. ... [The defendant] demonstrated at all
times a clear mind and ability to represent [him]self
during the trial of the cause.
Counsel representing the defendant in this appeal has conceded that the record
contains no evidence to support the "brain condition" alleged by the defendant. The
findings of the trial court also dispel the defendant's contention that he was under
the influence of medication. Thus, the issue has no merit.
VI
The defendant maintains that he was prejudiced because the trial
court permitted him only nineteen days to prepare for trial. Our legislature has
provided that "[e]very person accused of any crime ... shall be entitled to fourteen
(14) full days ... after arrest and the return of the indictment ... before being tried for
such offense." Tenn. Code Ann. § 40-14-105. That statutory requirement was met
in this case. The defendant did not request a continuance before trial and cannot
now complain that his rights were violated because the trial was commenced as
scheduled. See Tenn. R. App. P. 36(a). More importantly, the defendant has not
demonstrated how he was prejudiced by the relatively short duration between the
indictment and the trial.
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VII
Lastly, the defendant argues that he was hampered in his defense
because the District Attorney General's office refused to provide him with
information on jury selection and subpoenas. This issue was not included in the
defendant's motion for new trial. Typically, an issue not included as a ground for
relief in the motion for new trial is considered waived. Tenn. R. App. P. 3(e).
Nevertheless, the defendant would not prevail on the merits of the claim. We are
aware of no duty on the part of the District Attorney General to provide jury selection
information or subpoena information to a pro se defendant. The defendant does not
allege any irregularities in the jury selection process at his trial nor does he indicate
that there were witnesses essential to his defense whose presence he was unable
to secure.
Accordingly, we affirm the judgment of the trial court.
__________________________________
Gary R. Wade, Presiding Judge
CONCUR:
________________________________
David H. Welles, Judge
________________________________
Thomas T. W oodall, Judge
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